Wednesday, September 12, 2012

ORES Real Estate Index for August 2012

By Brian Madigan LL.B.
Here is the “ORES REAL ESTATE INDEX” which tracks the average resale prices
of single family homes and condominiums in the Greater Toronto Area (GTA). It
also tracks certain benchmark comparisons such as the price of oil and gold, as
well as the Consumer Price Index.

In addition, the stock market indices for Toronto, and the three
largest US markets are also compared.
For ease of comparison, everything we look at is worth 100 points on the
Index as of 1 January 2005. That time period compares favourably with the five
year average used as a standard benchmark comparison in the mutual fund
industry. In fact, it tracks over 7 years.

As of 31 August 2012, here is the Index representing average prices with the
July 31st, June 30th, May 31st, and April
30th numbers appearing in brackets for comparison:

Using the Index
Just a quick note on reading the information. Have a look at the ORES Index
for Real Estate (single family homes). As of the end of August, the index stood
at 148.26. That’s a 48.26% increase in 92 months. That means the increase is
0.524% monthly, or it could also be expressed as 6.29% annually.
Performance can always be difficult to interpret but the longer the period,
the more accurate the number becomes. There can, of course, be many short term
swings.

The other statistics are reported in a similar fashion for the ease of
comparison.

Observations (on the Index)
As we use index, there are several notable comments:
· Commodity prices are just commodity prices
· There is no other “extra return” for commodities
· The same is true for the CPI
· The CPI is a benchmark to see whether you are keeping pace with inflation,
that number is 115.39; increases have been modest and inflation appears to be
under control; this is significant. It is also noteworthy that the CPI actually
fell slightly last month, as it did for the previous 2 months
· For a realistic performance goal, you should aim for CPI plus 3.5%
annually
· Stocks provide dividends in cash or extra stock. This return is additional
to that shown in the stock market indices
· The stock market Indexes only measure the survivors. So, in 2009, both GM
and Chrysler would have been dropped due to the bankruptcies
· If you held GM and Chrysler, you lost everything, but two new companies
moved in to replace them in the Indexes
· Real estate offers a return in terms of occupancy. You can rent out the
property and receive income, or occupy the property and enjoy it yourself

Comparative Observations Using the New Index
· Gold overall is still the best performer, reaching 385.39, nothing else
comes close, however, it is well off its highs (425.72 in September 2011). To
some extent gold appears to be losing its favour, however this past month the
price seems to have stabilized from its previous 3 month downward trend
· Oil has been the most volatile, (it rose to 320.88 in July 2008 and it has
declined to 193.45) we are seeing slight upward trend this past month where it
now sits at 219.45
· Real estate was the most stable, with solid predictable returns at about
6.29% annually
· Our own stock market posted reasonable gains, however at 129.83 it is just
showing stability over the last few months. The TSX still falls substantially
behind single family homes over the measurement period, however, don’t forget
that the TSX is still well off its highs and is substantially resource based
· All three US stock market indicators are now showing positive numbers, and
may truly be a better overall indication of the true state of the North American
economy. The S&P matches inflation, the Dow is now measurably under the
Nasdaq which now exceeds our own TSX. This is very positive for the US economic
recovery.

Conclusion
For steady, predictable, measured gains pick real estate. It’s a solid
performer with lower risk (less volatility) and generally moving in a positive
direction.
And remember, when it comes to real estate, it’s never “wiped out”
completely, like GM or Chrysler stock. So, unless you’re sitting on the edge of
a tsunami, you’ll still own something when the storm is over.
For a benchmark of success, there’s 1,000 years of history to point to a rate
of return in real estate being about the equivalent of 5% per annum, simple
interest (non-compounded). That means that real estate doubles in value every 20
years. There are a lot of companies (now bankrupt, including CanWest Global, and
many US Banks) that would have been happy with that return.
The present rate of return although high by historical standards appears to
be sustainable in sought after locations like the GTA. At the moment, over our
measurement period we are looking at a 1.29% annual premium over the benchmark
5%.
And, what a difference a few months make. The longer term performance numbers
were:
8.20% at the end of April
8.08% at the end of May
7.65% at the end of June
6.28% at the end of July
6.29% at the end of August
That’s an almost 2% decline in long term performance over 5 months (all
periods commencing 1 January 2005). That’s significant in terms of
measurement.
If the past can be used as a reliable source of information for future
trends, we should see some recovery in September. It already looks like that
started in August, which is rather unusual.

Brian Madigan LL.B., Broker is an author and
commentator on real estate matters, if you are interested in residential or
commercial properties in
Mississauga, Toronto or the GTA, you may
contact him through RE/MAX West Realty Inc., Brokerage
416-745-2300 www.OntarioRealEstateSource.com

Wednesday, August 8, 2012

Can You Witness a Document if You’re not there ?

A problem frequently arises in real estate transactions when people say they
witness signatures, but they don't.

In Ontario, there are only three legal documents which require
witnesses:

1)Domestic
Agreements,

2)Powers of
Attorney, and

3)Wills.

Other documents are still valid without a
“witness”, but on the basis of “best practices”, there should be a witness to
the signature. That’s the case with real estate transactions. Any enforceable
agreement to convey real property must be in writing. That is set out in the Statute of Frauds. Domestic agreements
and powers of attorney can in fact serve as companion documents, even without a
witness. A holograph Will, if completed properly can

Here's a quick scenario. Bob wants to sell his house, so he hires Jack, a
realtor. An offer is faxed into Jack's office. Bob is on vacation out of the
country. Jack e-mails Bob, and Bob gives him the fax number where he is
staying. Jack faxes it over, and discusses the offer with Bob by phone. Then,
Bob faxes it back to Jack's office.

It's not witnessed! So, Jack decides to witness the document, and signs his own
name just above the line where it says "witness".

What's wrong with this scenario?

Jack said he witnessed the document but he didn't. That's the problem!

Now, you can appreciate that Jack's involvement was helpful. The correct and
proper procedure would be to properly document Jack's involvement.

So, what should Jack have done?

Jack should "authenticate" the document. He really can't witness it,
because he wasn't there. He should strike out the word "witnessed"
and insert ‘authenticated not witnessed".

What's the difference? A witness needs to be personally present, and see the
person sign the document in front of them. They become a compellable witness in
any legal proceedings. They would be expected to comment on several aspects
concerning the signing of the document. They should be able to say that the
person appeared to have capacity to sign. They knew they were signing a legal
document. The person did not appear to be under the influence of alcohol,
drugs, medication or fatigue. In all respects, they appeared to be
knowledgeable and execute the document without duress or coercion from any
other party.

Authentication is somewhat different. The person was not
personally present, but can state with a reasonable degree of certainty that
the signature is that of a specific individual. They know the signature. They
have the signature on file. The signature compares favourably with the
signature on file, or they "recognize" the signature. Banks will
undertake this task regularly.

You will appreciate that just because the signature looks similar that there is
no real guarantee. It's just a best guess, but it's a best guess by someone who
has certain business records on file, or a certain professional (or otherwise
competent) recognition of the signature.

There is obviously one further step. The signature could be "guaranteed".
This means that the authenticating party is absolutely certain, and offers a
contractual invitation to a third party to rely upon the truth of the
statement.

In the case of the Bank manager: "Authenticate" could lead to a tort
liability, a "Guarantee" could lead to a contractual liability.

In Jack's circumstances, he could raise his involvement and
"certification" to the next level. He could state "authenticated
and guaranteed". That would be as close to actually witnessing as possible.
But, you will appreciate that it still falls slightly short. He wasn't
physically present, so he truly cannot say anything about intoxification or
other factors that might have been an impediment to Bob's signing of the
document.

In real life, all too often someone in Jack's position will simply sign above
the witness line. That's risky!

Brian Madigan LL.B.,Broker is
an author and commentator on real estate matters, if you are interested in
residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through RE/MAX West Realty Inc.,
Brokerage 416-745-2300.www.OntarioRealEstateSource.com

Tuesday, August 7, 2012

Ontario Real Estate
SourceBy Brian Madigan
LL.B.We
looked at a case where a joint interest in a matrimonial home effectively
thwarted bankruptcy. But, that was a peculiar case. In Re:
Cameron, it was the bank which placed the deceased’s estate in bankruptcy,
months after he had passed away. That was too late!Had
the bankruptcy taken place during the lifetime of the deceased joint tenant,
then the one-half interest in the property would have been available to satisfy
the debts owed to creditors.This
is due to the fact that the bankrupt’s assets are conveyed to the Trustee. This
conveyance severs the joint tenancy and the property is now held as
tenants-in-common. This statutory severance allows the creditors to seize and
liquidate the bankrupt’s interest.As
you know, for joint tenancy to continue, four unities must be
present:1)Unity of
Interest2)Unity of
Possession3)Unity of
Time4)Unity of
TitleHowever, if there is really no expectation
of bankruptcy, and the widow acquires the title by survivorship on death, then
the deceased no longer holds title, and it’s too late for the bank to take
proceedings.Here’s an excerpt from the reasons for
Judgment by Judge Mesbur:·“When a joint tenant becomes bankrupt and the jointtenancy is severed, the
bankrupt’s half interest in the property as a tenant in common then
vests in the Trustee, and is available for the creditors. In a case such as
this, the jointtenancy is never
severed, there is nothing to vest in the Trustee, and nothing is available from
the property for the creditors.·When one
joint tenant dies, its interest in the property is extinguished, and the rights
of the remaining joint tenant or tenants are correspondingly enlarged. The
enlarged interest immediately vests in the remaining joint tenant or
tenants.·The
characteristic of an estate in joint tenancy is that the joint tenants have the
same interests ... and upon the death of one of the joint tenants the entire
estate remains in the survivor in whom the whole estate immediately
vests.”In
Re: Cameron having property registered in joint tenancy actually worked
quite favourably.But,
you have to remember, that you have to be “dead” to take advantage of the
opportunity.For
someone who is concerned about their creditors, joint tenancy does not afford
protection during their lifetimes, only after death. So, this is not a good
estate plan.Take
the reasonable precaution to ensure that property is held in the name of the
spouse who does not have an exposure to creditors. That step works well during
one’s lifetime and afterwards as well.It
is also noteworthy to remember that the joint interest is available to execution
creditors. Those who have judgments may obtain an execution. It is not simply a
remedy available in bankruptcy.Be
sure to obtain legal advice from a lawyer or solicitor practicing real estate
law or estate law before making a determination with respect to
title.See
the decision of Judge R. Mesbur in the Cameron Estate ats. Bank of
Nova Scotia (31 October
2011, Ontario Superior
Court).

Brian Madigan LL.B., Broker is an author and commentator on real estate
matters, if you are interested in residential or commercial properties in
Mississauga, Toronto or the GTA, you may contact him through RE/MAX West
Realty Inc., Brokerage 416-745-2300.www.OntarioRealEstateSource.com

Friday, August 3, 2012

Toronto Market Trends

Actually, that’s an interesting question.
Let’s first have a look at the report just published by the Toronto Real Estate
Board (TREB):

GTA Home Prices Up in
July

TORONTO,
August 3,
2012 – Greater Toronto
REALTORS® reported 7,570 sales in July 2012, representing a decline of 1.5 per
cent compared to 7,683 sales reported in July 2011. The decline was most
pronounced in the condominium apartment segment in the City of Toronto. Total sales in the
rest of the Greater Toronto Area (GTA) were up compared to the same period last
year.

“Very strong annual
sales growth in the first half of 2012 and an earlier peak in sales this spring
compared to 2011 help explain more moderate sales this summer. New mortgage
lending guidelines and the additional upfront cost of the City of Toronto land transfer tax also
prompted some households to put their buying decision on hold,” said Toronto
Real Estate Board (TREB) President Ann Hannah.

The average selling
price in July 2012 was $476,947 – up by four per cent compared to July 2011. The
MLS® Home Price Index (MLS® HPI)* composite index, which allows for an
apples-to-apples comparison of benchmark home prices from one year to the next,
was up by 7.1 per cent year-over-year.

“The GTA housing market
became better-supplied in recent months. Buyers benefitted from more choice in
the market place, resulting in less upward pressure on the average home price in
July,” said Jason Mercer, TREB’s Senior Manager of Market Analysis.

“The mix of
homes sold in July 2012 versus July 2011 also appears to have changed, further
influencing the average selling price. This is evidenced by the different annual
rates of growth between the overall average price and the MLS HPI®,” continued
Mercer.

COMMENT

Well, it certainly seems pretty clear from
the headline that the market was up. And, TREB goes on to point out that it
compared July 2012 to July 2011. When you do the calculations, that works out to
a 7.1% increase, year over year.

But,
have a look at the monthly numbers. The average price for a single family home
in the GTA was $516,359 in April 2012.
In fact, the decline since April has been
7.63%. May, June and July all reflect a steady decline.

We
could have used another headline that said: “GTA Home Prices Drop
7.63%”. But, nobody wants to read that.

So,
is that something to worry about?

Let’s add a little more perspective to
this. Last year the market peaked in May at $485,362 and dropped to $450,694 in
August. That was a 7.14% decline over that time period.

This
year the market peaked one month earlier. Is this just a cyclical trend or does
it reflect something in the underlying economy? Actually, that type of decline
is commonplace over the last decade.

Could we have a headline that just read:
“GTA Prices Fairly Stable”. We probably could, but that doesn’t seem
very exciting, and we would soon be fired from the editor’s
desk.

However, let’s have a look at some numbers
over the last two years:

April 2011 ~ $476,802
November 2011 ~ $477,573July
2012 ~ $476,947

That
looks fairly stable to me. We roughly have the same price now as we had last
Spring.

It’s
always interesting to look at the numbers behind the headlines. Which headline
did you like?

Brian Madigan LL.B., Broker is an author and commentator on real estate
matters, if you are interested in residential or commercial properties in
Mississauga, Toronto or the GTA, you may contact him through RE/MAX West
Realty Inc., Brokerage 416-745-2300.www.OntarioRealEstateSource.com

Friday, July 27, 2012

Having property registered in joint tenancy
actually worked quite favourably.

A
doctor acquired a matrimonial home and placed the title in his name together
with his wife as joint tenants. The doctor then obtained a loan to finance his
medical practice from the Bank. His wife was not asked to co-sign the
loan.

When
the doctor passed away, there were insufficient funds in his estate to pay the
Bank in full. The doctor’s wife had already acquired full title to the
matrimonial home by “right of survivorship” which goes with joint
tenancy.

As
luck would have it, Parliament had made some recent amendments to the
Bankruptcy and Insolvency Act (BIA).

Section 96 of the new BIA allows a creditor
to make application to Court to set aside a transfer of
property:

1)to a non-arms length
party,2)at less than fair
value,

3)made within one year of the
bankruptcy.

The
previous applicable provision under the old Bankruptcy and Insolvency
Act would have required proof of intent to deprive one creditor at the
expense of another. Proof of intent is no longer required.

So,
what did the Bank do? Write off the balance of the loan as a bad debt?

No,
it sued the widow!

It
placed the estate in bankruptcy and claimed that one half the value of the
matrimonial home should transfer back to the estate to satisfy the amount
outstanding on the loan.This
matter came on for hearing in the Superior Court of Ontario. It required the
Court to analyze just exactly what happens in joint tenancy, and just precisely
how does that “survivorship provision” really work.

Many
legal decisions have often said that the deceased’s interest in the property is
transferred upon their death to the surviving joint tenant. And, for the most
part, such an analysis is more than sufficient.

However, in this particular case, because
of the new wording contained in the Bankruptcy and Insolvency Act, the
real method of acquisition of the deceased’s interest by the survivor is at
issue.

The
Court concluded:

1)the deceased joint tenant’s
interest is extinguished upon death,2)by operation of law, the
survivor acquires the whole,3)there is no “transfer” within
the meaning of the BIA,4)if there is no transfer,
there is nothing which can be set aside.

You
might like to think the joint tenancy is “the answer”, however, it is actually
fraught with difficulties. In this case it worked out, and the widow kept the
house, but not always.

Be
sure to obtain legal advice from a lawyer or solicitor practicing real estate
law or estate law before making a determination with respect to
title.

And,
if interested have a look at the decision of Judge R. Mesbur in the Cameron
Estate ats. Bank of Nova
Scotia (31 October 2011,
Ontario Superior Court).

Brian Madigan LL.B., Broker is an author and commentator on real estate
matters, if you are interested in residential or commercial properties in
Mississauga, Toronto or the GTA, you may contact him through RE/MAX West
Realty Inc., Brokerage 416-745-2300.www.OntarioRealEstateSource.com

This
is the lesson learned by an elderly Toronto
couple. Mr.
and Mrs. Tseng purchased their older turn of the century home on Brunswick Avenue in
the Kensington Market area of Toronto in 2006 for $718,000.

That
seemed like a lot of money for a house, particularly when the wooden two storey
extension at the rear was falling apart. They
hired a contractor to tear it down and replace it with a new modern, soundly
constructed two storey addition. So, what was the problem? Simple, they never
obtained a building permit.

Sometimes, people go by the mantra “….it’s
easier to obtain forgiveness… than ask for permission…”. However,
when it comes to governments and courts, that’s not always the
case.

In
this case, not everyone was happy with the new construction. It was bigger than
the old wooden addition and blocked the sunlight. The resident’s association
didn’t want this sort of cavalier approach to building to take place in their
neighbourhood.

The
Tsengs sought permission after the fact. Their application was turned down at
every level, including the Building department of the City of Toronto, the
Committee of Adjustment, the Ontario Municipal Board, the Divisional Court
and the Ontario Court of Appeal.

Ultimately, they even went to the United Nations in
Geneva, Switzerland with a
human rights complaint.

The
new addition cost about $80,000 to construct, or about 11% of the value of the
property, and it should have added that much or more to the
house.

However, you probably guessed it: all the
appeals are over and the Tsengs have been ordered to demolish the addition.
Their costs are not insignificant. Last year, they estimated that their legal
costs exceeded $200,000. They also owe at least another $20,000 to the City. On
top of that, there will be the cost of demolition. Conservatively, we have
$220,000 in legals, $20,000 in costs to the City, $30,000 in demolition
expenses, and the original $80,000 to build. That all adds up to $350,000 for an
addition that isn’t there. And, of course, there is the loss of value associated
with the removal of the old addition.

All
in all, this is a mess!

Almost half the value of the property was
simply thrown away. This isn’t the way a good investment in real estate is
supposed to work.

What
should have happened?

The
original wooden addition likely represented a legal non-conforming use. The
Tsengs only wanted an additional one meter in depth. They should have applied
for a building permit and if denied, would have had the opportunity to go to the
Committee of adjustment for a minor variance. Instead, the contractor demolished
the older structure. That left them without the legal non-conforming component
for their application.

Now,
the “new” addition needed to comply with the current zoning and building
standards. This meant that the new addition was 10 meters too deep,
rather than just one. But, the old addition had now been long since removed.
This legal escapade took over 6 years. And, as you can well imagine, you
couldn’t sell this property to anyone in the meantime.

Their worst case scenario would have been
to repair, rectify and improve their old wooden addition. From a construction
perspective, it would have been cheaper to tear it down and rebuild, but from a
legal perspective, it would have been permitted to stay.

If
there are some lessons here:

1)apply for a building
permit,2)don’t demolish anything until
you have the new permit in hand,3)get legal
advice,4)don’t let your contractor
give you legal advice “for free”, you know what that’s worth,5)don’t throw money at the
legal system,6)invest in the property by
having the funds expended add to the value.

And,
of course, forget about that mantra: “….it’s easier to obtain forgiveness… than
ask for permission…”.

Get
the building permit!

Brian Madigan LL.B., Broker is an author and commentator on real estate
matters, if you are interested in residential or commercial properties in
Mississauga, Toronto or the GTA, you may contact him through RE/MAX West
Realty Inc., Brokerage 416-745-2300.www.OntarioRealEstateSource.com

Wednesday, April 4, 2012

As many of you know, I have offered to let my name stand as a candidate for election as a Director of the Real Estate Council of Ontario for a three year term commencing in June 2012.

Let's look at an issue which I believe is topical for the 2012 election?

There are offers commonly known as “Bully offers” which present a problem for the industry. Few participants are on the winning end. As part of the process, the existing ethical obligations apparently suggest that by placing the client in a higher position than the profession as a whole, that the consumer is well-served.

To me, the result is the opposite. The consumer loses faith in the integrity of the system. Those who breach the rules are encouraged and those who follow the rules become disgruntled.

Consumers and the public understand the rule of law and the basic system of fairness. What they do not understand is the bully offer loophole.

In my view, there are times when a professional must honour a professional code of ethics first and follow the client's instructions thereafter. This occurs every day in the legal and medical professions. It is a matter that should be honoured here too.

As the real estate business moves from an "industry" to a "profession", the Professional Standards and Code of Ethics need to form the primary responsibilities of the registrants.

While it is always possible to contact a lawyer for legal advice on such matters, I would suggest that appropriate amendments to the Code of Ethics be made under the Real Estate and Business Brokers Act, 2002 be made to ensure that a professional's responsibilities are primary.

The related and important consequence would be the elimination of the bully offer loophole. This will add to the inherent integrity of the system, ensure fairness and encourage the consumer to respect the registrants and the profession.

A seller would then be able to set up rules related to the presentation of offers, and everyone would be obligated to follow those rules, without the risk that a “bully offer” might arrive earlier. There should be no breach of ethical obligations if the registrant simply followed the seller’s rules and guidelines.

Here's the political promise: if I am elected I will support the appropriate amendments to the Real Estate and Business Brokers Act, 2002, to place adherence to the Professional Code of Ethics as the primary duty of the registrants.

The effect in my view will be "increased professionalism".

Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through RE/MAX West Realty Inc., Brokerage 416-745-2300.www.OntarioRealEstateSource.com